1. This appeal arises out of an action by the landlord to recover possession of a non-transferable occupancy holding'. The plaintiff-respondent seeks to recover possession on the ground that the raiyat has executed a usufructuary mortgage of his holding, has placed him in possession and is himself no longer in possession of the same. It has been found by both the Courts below that the raiyat did execute a usufructuary mortgage in favour of the defendant No. 3 and that the original raiyat is no longer in possession. Upon these findings, the lower appellate Court has given the plaintiff a decree for khas possession. The plaintiff is a purchaser of certain specific lands corresponding to a 13 annas share which belonged to his vendor and is also a descendant of the same family. These lands being debutter lands the duty of the shebait, that is, the duty of maintaining the worship of the idol to whom the lands are dedicated was also transferred to him. The defendant No. 3 alone has appealed, and it has been contended on his behalf that the transfer of the debutter lands to the plaintiff was invalid according to law and that there-fore, the plaintiff is not entitled to maintain the suit. The point, however, is concluded by authority see the case of Khetter Chander Ghose v. Hari Das Bundopadhya 17 C. 557. The kabala distinctly recites that the transfer was made for the purpose of carrying on the worship of the idol The first contention, , therefore, must fail.
2. It has next been contended that the rent receipts granted on behalf of the plaintiff ' to the former raiyats show that the possession of defendant No. 3 as mortgagee of the holding has been recognised. In all ' the receipts the tenant to whom they are granted is the original tenant, Nabin Chunder Haider. No doubt in the receipt for (sic) year 1307, the name of defendant (sic) described as mortgagee also appears as (sic) person through whom rent is received, (sic) in the later receipts for the years 1308 1309 and 1310, the name of defendant No. 3 appears merely as the person through whom the rent is received. Therefore, according to the decisions in the cases of Rasamoy Purkoit v. Srinath Moyra 7 C.W.N. 132; Radha Kishore Manikya v. Ananda Pria 8 C.W.N. 235 these receipts do not amount to a recognition by the landlord of defendant No. 3 either as tenant or as mortgagee. Even, assuming that the rent receipt for the year 1307 taken by itself might amount to a recognition by the landlord of the possession of defendant No. 3 as mortgagee, it does not amount to a recognition by him of his status as a raiyat of the holding, and it is only the recognition of such a status as that which would preclude the landlord from seeking to recover khas possession of the land. The mere creation of a mortgage by a raiyat in respect of a non-transferable occupancy holding would not entitle a landlord to recover khas possession, because, in such a case, there is no transfer of possession. It is when the raiyat transfers the possession of the holding to a usufructuary mortgagee and ceases to hold possession that the landlord becomes entitled to recover khas possession. See Krishna Chandra Datta Chowdhury v. Khiran Bajania 10 C.W.N. 499 : 3 C.L.J. 222; Rasik hall Butt v. Bidhu Mukhi Dasi 10 C.W.N. 719 : 1 C.L.J. 306 : 33 C. 1094. It has been argued that in this case there is no finding that the original raiyat has abandoned the holding, but it is perfectly clear that he has transferred possession of the land to the usufructuary mortgagee for several years past and during this period he has had no connection with the land. There is another important circumstance in this case and it is this : The defendant No. 1, who was the former raiyat, has not appealed against the decree of the Court below awarding khas possession to the plaintiff. That decree, therefore, stands good as against him. The defendant No. 3 who, as I have said, holds under a usufructuary mortgage from him, can resist the suit of the plaintiff to recover khas possession by setting up the right of the tenant, and it is the tenant alone who, if he establishes his right to the holding and shows valid rounds for continuing in possession thereof, (sic) defeat the suit of the landlord. But, if he is satisfied with the decree for eviction passed against him, it seems to me very doubtful whether any person, who claims through him a tight to the holding which by law is not transferable, can successfully resist the suit of the landlord to recover possession.
3. For these reason, I am of opinion that the appeal must fail. It is, accordingly, decide with costs.